Cincinnati Bar Assn. v. Hartke

[Cite as Cincinnati Bar Assn. v. Hartke, 132 Ohio St. 3d 116, 2012-Ohio-2443.]
CINCINNATI BAR ASSOCIATION v. HARTKE.
[Cite as Cincinnati Bar Assn. v. Hartke, 132 Ohio St. 3d 116, 2012-Ohio-2443.]
Attorneys—Misconduct—Threatening criminal action to gain advantage in civil
matter—Engaging in conduct adversely reflecting on fitness to practice law—
Six-month suspension.
(No. 2011-1774—Submitted December 7, 2011—Decided June 6, 2012.)
ON CERTIFIED REPORT of the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-003.
__________________
Per Curiam.
{¶ 1} Respondent, James R. Hartke, Attorney Registration No. 0011584,
was admitted to the practice of law in Ohio in 1973. On February 14, 2011,
relator, the Cincinnati Bar Association, filed a complaint charging Hartke with
violations of Prof.Cond.R. 1.2(e) and 8.4(h). The Board of Commissioners on
Grievances and Discipline (“board”) concluded that Hartke had violated the
aforementioned rules and recommended that Hartke be suspended from the
practice of law for a period of six months, with the entire suspension stayed.
Hartke filed no objections. After reviewing the record, we hold that Hartke’s
actions merit a six-month suspension.
I. Misconduct
{¶ 2} The relator and Hartke stipulated to certain facts. The parties then
filed a “consent to discipline” agreement in which they agreed that Hartke had
committed the alleged violations, that certain mitigating and aggravating factors
were present, and that a six-month stayed suspension and mandatory anger-
management counseling would be an appropriate sanction. A panel of the board
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rejected the proposed consent-to-discipline agreement, and the matter proceeded
to a hearing.
{¶ 3} The evidence from the parties’ stipulations establishes that in 2009,
Jacqueline Usher retained Hartke to represent her in her divorce. By October
2009, Usher owed Hartke over $5,000 in legal fees. In February 2010, Usher and
Hartke agreed that Hartke would accept one half of the distribution that Usher
received from her ex-husband’s 401(k) plan as complete satisfaction of the legal
fees that Usher owed Hartke. They agreed that the check issued from the pension
account would be made out jointly to Usher and Hartke.
{¶ 4} Later that February, Usher met with another attorney to discuss the
possibility of filing for bankruptcy. That attorney told Usher that the fees she
owed Hartke were dischargeable in bankruptcy. However, Usher never told
Hartke that she was considering filing for bankruptcy, because she was afraid of
him and how he might react.
{¶ 5} In April 2010, the qualified domestic-relations order dividing
Usher’s ex-husband’s 401(k) plan was approved, and she requested that the check
for the proceeds be made out to her alone. In April 2010, Usher received the
proceeds but did not pay Hartke.
{¶ 6} Hartke began calling Usher to determine the status of the
distribution, but Usher refused to answer his calls. She eventually disconnected
her home phone and changed her cell-phone number.
{¶ 7} However, this did not deter Hartke; in June 2010, he called Usher
at work. When Hartke was told that Usher was sick, he went to her apartment.
There he confronted Usher, who was with her six-year-old daughter. Hartke
admitted that he was angry at this time. A heated discussion ensued when Hartke
demanded that Usher pay his fees. When it became clear that Usher would not
pay, Hartke threatened her with criminal action. Hartke insisted that Usher go to
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the bank and withdraw funds to pay his fee. Usher went to the bank, but was so
upset that tellers escorted her to the back of the bank and called police. The
responding officer suggested that Usher pay Hartke what she owed. When Usher
indicated that she did not have enough funds in her account to pay Hartke, he
agreed to accept $3,000 to satisfy Usher’s bill.
{¶ 8} The board concluded that Hartke’s conduct had violated
Prof.Cond.R. 1.2(e) (“Unless otherwise required by law, a lawyer shall not
present, participate in presenting, or threaten to present criminal charges or
professional misconduct allegations solely to obtain an advantage in a civil
matter”) and 8.4(h) (a lawyer is prohibited from engaging in conduct that
adversely reflects on the lawyer's fitness to practice law). We adopt the board’s
findings of fact and misconduct.
II. Sanction
{¶ 9} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B).
{¶ 10} The board found several mitigating factors, including the fact that
Hartke made full disclosure to the panel, that his misconduct in this matter was a
one-time incident, and that his misconduct in this case is inconsistent with his
general character.
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{¶ 11} However, the board also found several aggravating factors,
including Hartke’s previous suspension from the practice of law for one year.
Cincinnati Bar Assn. v. Hartke, 67 Ohio St. 3d 65, 616 N.E.2d 186 (1993). Also
considered to be aggravating factors were Hartke’s selfish motive, the
vulnerability of his client and the emotional harm she suffered, and his failure to
fully acknowledge the wrongful nature of his conduct, characterizing it instead as
a mere technical violation of his ethical obligations.
{¶ 12} The board recommended that Hartke be suspended for a period of
six months, all stayed on the conditions that he commit no further violations
during the suspension and that he pay the costs of prosecuting this matter. Under
the particular circumstances in this case, however, we hold that the aggravating
factors outweigh the mitigating circumstances and justify an actual suspension.
{¶ 13} In its discussion of the appropriate sanction in this case, the board
cited Cincinnati Bar Assn. v. Cohen, 86 Ohio St. 3d 100, 712 N.E.2d 118 (1999),
and Butler Cty. Bar Assn. v. Cunningham, 118 Ohio St. 3d 188, 2008-Ohio-1979,
887 N.E.2d 343. In both cases, the attorney made a single threat of criminal
action against a client to gain an advantage in a civil case, and we imposed a
public reprimand for both attorneys.
{¶ 14} In support of a stayed suspension, the board cited Akron Bar Assn.
v. Miller, 130 Ohio St. 3d 1, 2011-Ohio-4412, 955 N.E.2d 359, and Disciplinary
Counsel v. Landis, 124 Ohio St. 3d 508, 2010-Ohio-927, 924 N.E.2d 361. In
Miller, without making any physical contact, the attorney made inappropriate
sexual comments to his client, including that she perform a sexual act on him. Id.
at ¶ 6-7. In Landis, the attorney pleaded guilty to operating a vehicle while under
the influence of alcohol or a drug of abuse. Id. at ¶ 4. In both cases, we held that
the attorneys had engaged in conduct adversely reflecting on their fitness to
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practice law and we imposed a stayed suspension as a sanction. Miller at ¶ 20;
Landis at ¶ 8.
{¶ 15} We find that all the aforementioned cases are distinguishable from
the instant case. In Cohen, Cunningham, and Landis, there were no aggravating
factors. Cohen, 86 Ohio St. 3d 100, 712 N.E.2d 118; Cunningham, 118 Ohio
St.3d 188, 2008-Ohio-1979, 887 N.E.2d 343, ¶ 9; Landis at ¶ 7. In the instant
case, Hartke acted with a selfish motive, caused emotional harm when he took
advantage of a vulnerable client, and failed to fully acknowledge the wrongful
nature of his conduct.
{¶ 16} In Miller, the attorney made inappropriate sexual comments to a
client during a phone call. We held that the client’s vulnerability and the
attorney’s selfish motive were aggravating factors. Id., 130 Ohio St. 3d 1, 2011-
Ohio-4412, 955 N.E.2d 359, ¶ 16. However, the attorney in Miller clearly
admitted the wrongful nature of his conduct, calling it “ ‘absolutely sickening,’ an
‘abomination,’ and ‘reprehensible.’ ” Id. at ¶ 12. We also found that a mental
illness contributed to the attorney’s conduct in Miller, which was an additional
mitigating factor. Id. at ¶ 13.
{¶ 17} In the instant case, Hartke also acted with a selfish motive and took
advantage of a vulnerable client. Furthermore, unlike the attorney in Miller,
Hartke was aware that his client had been involved with a difficult divorce case.
Hartke threatened his client with criminal action and testified that he told her,
“You could be arrested. You can go to jail. You could lose your kids.” And
Hartke made these threats in person and in the presence of the client’s six-year-
old child. Under these circumstances, we believe that the client in this case was
in a more vulnerable position than the client in Miller and suffered more
emotional damage. We have repeatedly held that “ ‘[t]he more vulnerable the
client, the heavier is the obligation upon the attorney not to exploit the situation
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for his own advantage.’ ” Disciplinary Counsel v. Freeman, 106 Ohio St. 3d 334,
2005-Ohio-5142, 835 N.E.2d 26, ¶ 13, quoting Disciplinary Counsel v. Booher,
75 Ohio St. 3d 509, 510, 664 N.E.2d 522 (1996); Disciplinary Counsel v. Moore,
101 Ohio St. 3d 261, 2004-Ohio-734, 804 N.E.2d 423, ¶ 17.
{¶ 18} Further, unlike the attorney in Miller, Hartke has not
wholeheartedly admitted that his conduct was wrongful, but instead has claimed
that it was only a technical violation of his ethical obligations. Failing to admit
wrongdoing only “compound[s] [an attorney’s] misdeeds.” Disciplinary Counsel
v. Heiland, 116 Ohio St. 3d 521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 45.
{¶ 19} Finally, Hartke was not suffering from any mental illness, which
was a mitigating factor in Miller.
{¶ 20} Consequently, we hold that the particular aggravating
circumstances distinguish this case from the case law relied upon by the board in
support of recommending a stayed suspension. Accordingly, we suspend Hartke
from the practice law for a period of six months. Costs are to be paid by Hartke.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
LANZINGER, J., dissents and would impose a six-month stayed suspension.
__________________
Waite, Schneider, Bayless & Chesley and Jean M. McCoy, for relator.
John H. Burlew, for respondent.
______________________
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